Good news. Yesterday, the California Supreme Court approved revisions to the California Rules of Professional Conduct governing the ethical duties of prosecutors in California. The Revised Rule 5-110 includes the obligation to disclose exculpatory evidence (so-called Brady evidence, after Brady v. Maryland):
(D) Make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
The key part of the revised Rule is the note to it clarifying that the obligation is not based on a prosecutor's own assessment of the value of the exculpatory evidence:
[3] The disclosure obligations in paragraph (D) are not limited to evidence or information that is material as defined by Brady v. Maryland (1963) 373 U.S. 83 [83 S. Ct. 1194] and its progeny. For example, these obligations include, at a minimum, the duty to disclose impeachment evidence or information that a prosecutor knows or reasonably should know casts significant doubt on the accuracy or admissibility of witness testimony on which the prosecution intends to rely. Paragraph (D) does not require disclosure of information protected from disclosure by federal or California laws and rules, as interpreted by case law or court orders. Nothing in this rule is intended to be applied in a manner inconsistent with statutory and constitutional provisions governing discovery in California courts. A disclosure’s timeliness will vary with the circumstances, and paragraph (D) is not intended to impose timing requirements different from those established by statutes, procedural rules, court orders, and case law interpreting those authorities and the California and federal constitutions.
What does that mean? Prosecutors have an constitutional obligation to turn over evidence that tends to negate the defendant's guilt (so-called Brady) evidence) or undermine the credibility of the government's witnesses (so-called Giglio evidence). But some California prosecutors have asserted that the obligation only extends to evidence that they believe is material and turthful — that is, evidence that the prosecutor subjectively believes is credible could make a difference in the outcome of the case. But that's not the law; it's not for an advocate for one side to decide whether evidence is credible material or useful to the other side. There's been litigation over it, including a lawsuit by the ACLU against the Los Angeles County District Attorney's Office that led to changes in policy.
Though the California State Bar remains regrettably weak in imposing consequences on prosecutors for violations of their ethical and constitutional obligations, this revised rule is a stride in the right direction. The Rule reflects a clear judgment that prosecutors (at least state prosecutors — federal prosecutors have sometimes claimed that they are not bound by state ethical rules that contradict federal policy) can't withhold exculpatory evidence based on their subjective belief that it's not credible or not useful to the defense or wouldn't make a difference.
Congrats to the advocates who succeeded in pushing this Rule change through, including Professor Laurie Levenson.
Copyright 2017 by the named Popehat author. https://www.popehat.com/2017/11/03/california-supreme-court-adopts-ethical-rule-requiring-prosecutors-to-wait-how-was-this-not-already-a-rule/
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